ML20155C269

New England Coalition on Nuclear Pollution Motion for Clarification Or,In Alternative,Motion for Leave to File Notice of Appeal out-of-time.* Notice of Appeal & Svc List Encl

ML20155C269
Person / Time
Site:	Seabrook
Issue date:	06/01/1988
From:	Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20155C228	List: ML20155C222 ML20155C269
References
OL-1, NUDOCS 8806140141
Download: ML20155C269 (9)

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June 1, 1988 UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC CAFETY AND LICENSING APPEAL BOARD

)

In the Ma tter of )

)

Public Service Company of )

New Hampshire, et al. ) Docket Nos. 5 0-443 OL-1

) 5 0-4 4 4 OL- 1 (Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY

) PLANNING & TECHNICAL

) ISSUES NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S MOTION FOR CLARIFICATION OR, IN THE ALTERNATIVE, MOTION FOR LEAVE TO FILE A NOTICE OF APPEAL OUT OF TIME Intervenor New England Coalition on Nuclear Pollution

("NECNP") moves that the Appeal Board clarify its opinion in ALAB-892,1 to correct any implication in that opinion that the Licensing Board's May 12, 1988 Meinorandum and Order dis-missing NECNP Contentions IV and I.V as "abandoned" con-stitutes an initial decision appealable under 10 C.F.R. S 2.762. In the alternative, NECNP requests that the Appeal Board allow it to file the attached Notice of Appeal out of time.

f G

?a 1

Public Service Co. of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-892, 2 7 NRC (1988), slip opinion a t 6

n. 12. Hereinafter, all administrative decisions in the Seabrook proceeding will be cited only by number and date.

The agency's citation system denotes decisions of the Licens-ing Board Panel as "LBP" decisions Appeal Board decisions as "AL AB , " and Commission decisions as, "CLI."

Background

On April 22, 1988, NECNP urote a letter to the Licens-ing Board notifying the Licensing Board and the parties of NECNP's decision not to litigate NECNP Contention IV, regarding the accumulation of aquatic organisms in the cool-ing system, and NECNP Contention I.V, regarding in-service inspection of steam generator tubes. At the same time, NECNP notified the Licensing Board and the _ parties of its intention to appeal the Licensing Board's restrictive rulings which precluded NECNP f rom litigating the adequacy of Applicants' program for controlling microbiologically induced corrosion as within the scope of NECNP Contention IV "at the appropriate time."

On April 25, 1988, the Appeal Board -issued a Memorandum and order reversing yet another aspect of the Licensing Board's Ma rch 2 5, 1987, partial initial decision ("P.I.D") 1 with respect to NECNP Contention I . B.2, regarding environ-mental qualification of the RG58 coar.ial cable, and remanded that Contention to the Licensing Board for further proceed-ings.2 On May 12, 1988, the ticensing Board issued an order, captioned as a "Memorandum and Order," dismissing NECNP Con-tentions IV and I.V, as "abandoned." NECNP did not file a 2 ALAB-891, slip opinion, at 2 5-26.

3-notice of appeal at that time because it believed'that, as A result of the pendency of NECNP Contention I.B.2, an appeal of the Licensing Board's May 12, 1988 Order regarding NECNP Contention IV would be rejected as interlocutory, pursuant to 10 C .F.R. S 2. 7 30( f) .

i I.

The Licensing Board's May 12, 1988 Order is not an Initial Decision Appealable Under 10 C.F.R. S 2.762.

In A LAB-892, this Board suggested, in dicta, that the  !

Licensing Board's May 12, 1988, Memorandum and Order con-i stitutes an initial decision appealable under 10 C.F.R. S 1

2.762. i It is NECNP's belief that this Order does not con-  ;

stitute an appealable order within the meaning of 10 C.F.R.

S 2.760 Ra the r, NECNP is precluded by 10 C.F.R. S 2. 730( f) 1 from appealing the May 12, 1988 order due to its inter-

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locutory nature.  !

l The Commission's rules of practice provide only for appeals f rom "initial decisions":

h'ithin sion, ten (10) days after service of an initial deci-l filing aany partyof notice may take an appeal to the Commission by appeal.

10 C . F . R . S 2.752(a) (en.phasis added) . Section 2.730(f) prohibits parties from filing appeals of interlocutory rulings prior to the issuance of an initial decision. Thus, unless the Licensing Board's May 12, 1988 Crder constituted an "initial decision," it is not appealable.

On its face, the Licensing Board's hay 12, 1988 Order does not constitute an initial decision, as it is defined by 10 C.F.R. S 2.760.

An initial decison must include:

(1) Findings, conclusions and rulings with the reasons or basis for them, on all material issues of fact, law, or discretion presented on the record:

(2) All f acts officially noticed and relied on in making the decision; (3) The appropriate ruling, order or denial of relief with the effectie date; (4) The time within which a notice of appeal from the decision and a supporting brief may be filed, the time within which briefs in support of or inopposilon to an appeal filed by another party may be filed...

10 C . F. R. S 2. 7 60( c) . Here, the Licensing Board's May 12, 1988 Order was not captioned as a "partial initial deci-s ion. " It contained no findings of fact or law on the merits of NECNP Contention IV or I.V, nor did it set out the time within which a notice of appeal and supporting briefs must be filed. Accordingly, until such time as the Licens-ing Board appropriately issues a final, initial decision, NECNP may not appeal the Licensing Board's interlocutory rulings regarding the scope of NECNP Contention IV.

This reading of the Commission's rules is consistent with past Appeal Board decisions. It is well established that only "final" actions are appealable. A Licensing Board's action is "final" when it either "end[s] the pro-ceeding... [or) sever [s] a participant." Toledo Edison Co. I (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 7 52, 758 (1975). This order clearly did not end the onsite pro-ceeding or sever NECNP's participation. Ra ther, as a result of the remand of the RG58 coaxial cable issue in ALAB-891,

5-NECNP has a third, contested onsite issue that must be resolved prior the issuance of an new initial decision.

Accordingly, there is no initial decision that is appealable under 10 C.F.R. S 2.762.3 Until the Licensing Board issues a new P.I.D., the Licensing Board's inter-locutory orders and rulings are not ripe for review, and any appeal of these rulings would be prematurely taken.4 II.

NECNP's Failure to Pile a Notice of Appeal Within the Applicable Time Limits is Due to Good Cause.

In the alternative, NECNP requests that the Appeal Board grant NECNP's motion for leave to file the attached notice of appeal, because NECNP has good cause for the late filing.

First, NECNP's understanding that the remand of the RG58 coaxial cable issue in ALAB-891 rendered ar.y appeal 3

The Licensing Board's February 17, 1987 renewal of low power authorization for Seabrook (LBP-88-6) did not renew the pre-viously reversed aspects of the Ma rch 25, 1337, P.I.D. i Ra ther, the Licensing Board renewed low power authorization l i

despite the unresolved status of NECNP Contentions I.V and IV, pursuant to its supposed authority under 10 C.F.R. S 50.5 7(c) to authorize low power operation prior to the issuance of an initial decision.

4 In fact, the purpose of appealing the dismissal of NECNP Con-tention IV is to appeal the Licensing Board's March 18, 1988, discovery ruling that microbiologically induced corrosion was not within the scope of NECNP Contention IV, and that the con-tention was limited to only the accumulation of macro-organisms As and debris resulting in blockage of coolant flow.

the Appeal Board stated in Toledo Edison Co. (Davis-Be sse Nuclear Power Station), A LA B- 3 0 0, 2 NRC 7 52, 758 (1975) "An order which does no more than deny discovery is wholly inter-locutory."

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f rom the dismissal of NECNP's other, pending contentions I I

interlocutory was reasonable. This interpretation of the effect of ALAB-891 was consistent with past practice in this proceeding, in which the Appeal Board's October 1, 1987, reversal of the Ma rch 25, 1987, P.I.D. with respect to NECNP Contentions IV and I .V. had the legal effect of vacating the underlying P.I.D.

(see discussion above) .

Moreover, if the Licensing Board's May 12, 1988 Order did, in fact, constitute a final appealable decision, the Licensing Board erred in f ailing to caption it as such, or to otherwise comply with the requirements of 10 C.F.R. S

2. 7 60( c) , particularly with respect to the requirement that t ene Licensing Board inforn, the parties of their appeal rights, and the applicable deadlines for filing such appeals, i-3 Failure to permit NECNP to file this appeal will cause extraordinary hardship to NECNP. NECNP clearly communicated t

its continued belief that Applicants' program for contro11-ing microbiological 1y induced corrosion is inadequate, and its intention to appeal the Licensing Board rulings preclud-ing NECNP f rom litigating this issue as within the scope of NECNP Contention IV. UECNP has invested considerable time and resources into developing this issue, and no other party i is available to represent NECNP's interest in this regard.

Moreover, permitting the appeal will not unduly delay tue issuance of partial initial decision or a low power author-l l

a

e  !

i ization, which must await the resolution of the remanded

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contention on environmental qualification of the RG58 i

coaxial cable, and the Commonwealth of Massachusetts' newly admitted contention on emergency notification.

Finally,.the public interest favors permitting NECNP to file this appeal out of time. NECNP s trongly believes that the issue of microbial fouling and microbiologically induced i corrosion is a serious safety concern. If, in fact the Licensing Board erred in ruling that it is not within the I scope of NECNP Contention IV, this issue must be resolved  !

prior to issuance of an operating license. The public's I t

right to a hearing on this important safety issue should not be denied due to a procedural error.

Accordingly, NECNP had good cause for the failure to i

file its notice of appeal on time, and respectfully requests l

the Appeal Board to accept this late filing. l i

i Respectfully submitted, fk Andrea Fe rster HARMON & WEISS 2 001 "S" St reet N.W.

Suite 4 30 Washington, D.C. 20009 (202) 328-3500 CERTIFICATE OF SERVICE I certify that on June 1, 1988, pleading were served by first-class mail or as otherwisecopies of the foregoing indicated on all parties listed on the attached service  !

/ pg4 (f

Andrea Forster l j

e UNITED STATES NUCLEAR REGULATORY COMP g IgN U5NRC BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

) '88 JUN -6 A9 :07 In the Matter of )

)

Public Service Company of )

0FFICE,  : iA New Hampshire, et. al. ) Dohfeb ENoWC60-443 OL-1

)

(Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY

) PLANNING & TECHNICAL

) ISSUES

)

NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S NOTICE OF APPEAL Pursuant to 10 C . F. R. S 2.762, the New E'igland Coalition On Nuclear Pollution (NECNP) hereby gives notice of its appeal of the Atomic Safety and Licensing Board ("Wolfe Board") MEMORANDUM AND ORDER), dated May 12, 1988, to the extent that Order dis-misses NECNP Contention IV, regarding accumulation of aquatic l

organisms in cooling systems.

I Respectfully submitted, e

An'd e HARMON & WEISS 2001 "S" Street N.W. Suite 430 Washington, D.C.. 20009 (202) 328-3500 1

CERTIFICATE OF SERVICE I certify that on June 1, 1988, copies of the foregoing pleading were served by first-class mail or as otherwise indi-cated on all parties listed on the attached service list.  ;

Wx<A-- '

Andrea Fe rster '

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SEABROOK SERVICE LIST - ONSITE APPEAL BOARD Sheldon J. Wolfe, Chairman 155 Weshington Road Office of General Counsel k

Alan S. Rosenthal, Chairman U.S. NRC Rye, New HampGire 03870 U.S. NRC U.S. NRC Washington, D.C. 20555 Washington, D.C. 20555 Washington, D.C. 20555 Richard E. Sullivan,iMayor Dr. Jerry liarbour City Hs.ll R. Scott liill Whilton Howard A.Wilber U.S. NRC Newburypori hiA 01950 Lagoulis, Clark, Hill-Whilton U.S. NRC Washington, D.C. 20555 & McGuire Washington, D.C. 20555 Alfred V. Sargent, Chairman 79 State Street Dr. Emmeth A. Luebkek h Board of Segetmen Newburyport, MA 01950 5500 Friendship Boulevarc Town of Salisbury, MA 01950 Apartment 1923N George Dana Bisbee, Est.

Chevy Chase, MD 20815 Senator Gordon J. Ilumphrey Geoffrey M. Huntington, Esq.

U.S. Senate Office of the Attorney General Atomic Safety & Licensing Washington,13.C. 20510 State House Annex Board Panel (Attn. Tom Burack) Concord, NH 03301 U.S. NRC Washington, D.C. 20555 Selectmen of Northampton Allen Lampert Northampton, New Hamp. Civil Defense Director Atomic Safety & Licensing shire 03826 Town of Brentowood Appeal Board Panel Exeter, NH 03833 U.S. NRC Senator Gordon J. Humphrey Washington, D.C. 20555 1 Eagle Square, Ste 507 Richard A. Hampe, Esq.

Concord, NH 03301 Hampe and McNicholas Docketing and Service 35 Pleasant Street U.S. NRC Michael Santosuosso, Ccncord, NH 03301 Washington, D.C. 20555 Chairman Board of Selectmen Gary W. Holmes, Esq.

Mrs. Anne E. Goodman Jewell Street, RFD #2 Holmes & Ellis Board of Selectmen South Hampton, Nil 03842 47 Winnacunnent Road 13-15 New Market Road Hampton, NH 03842 Durham, NH 03842 Judith H. Mizner, Esq.

Sihrrglate, Gertner, et al. William Armstrong William S. Lord, Selectman 80, Broad Street Civil Defense Director Town llall-- Friend Street Boston, MA 02110 10 Front Street Amesbury, MA 0191? Exeter, NH 03833 Rep. Roberta C. Pevear J:ine Doughty Drinkwater Road CaMn A. Canney SAPL Hampton Falls, NH 03844 City Manager, City Hall 5 Market Street 126 Daniel Street Portsmouth, NH 03801 Phillip Ahrens, Esq. Portsmouth, NH 03801 Assistant Attorney General Carol S. Sneide , Esquire State House, Station #6 Matthew T. Brock, Esq.

Assistant Attorney General Augusta, ME G4333 Shaines & McEachern 1 Ashburton Place,19th Floor P.O. Box 360 Boston, MA 02108 Thomas G. Dignan, EsqM Maplewood Avenue R.K. Gad II, Esq. Portsmouth, NH 03801 Stanley W. Knowles Ropes & Gray l Board of Seleetmen 225 Franklin Street Sandra Gavutis P.O. Bor 710 Boston, MA 02110 RFD 1, Box 1154 North Hampton, NH 03826 East Kensington, NH 03827 Robert A. Backus, Esq.

J.P. Nadeau Backus, Meyce & Solomon Charles P. Graham, Esq.

Town of Rye 111 Lowell Strcet McKay, Murphy and Graham Manchester, NH 03105 100 Main Street Amesbury, MA 01913 Gregory A. Berry, Esc .

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